Patna High Court
Shahnaz Yunus vs The State Of Bihar on 16 February, 2026
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.890 of 2025
Arising Out of PS. Case No.-126 Year-1999 Thana- KOTWALI District- Patna
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Shahnaz Yunus W/o Late Yasub Yunus @ Md. Yasub Yunus, Resident of
Yunus Campus, S.P. Verma Road, PS- Kotwali, Distt.- Patna.
... ... Petitioner
Versus
1. The State of Bihar.
2. Yasmin Bano W/o Late Mr. Md. Yusuf Yunus R/o Yunus Campus, S.P.
Verma Road, P.S.- Kotwali, Distt.- Patna.
3. Md. Waqar Yunus S/o Late Mr. Md. Yusuf Yunus R/o Yunus Campus, S.P.
Verma Road, P.S.- Kotwali, Distt.- Patna.
4. Md. Anzar @ Md. Anzar Imam S/o Late Zafar Imam R/o road no. 8, near
stepping stone school, Mohalla - Alinagar, P.S.- Phulwarisharif, Distt.-
Patna, Presently residing at Yunus Campus, S.P. verma Road, P.S.- Kotwali,
Distt.- Patna.
... ... Respondents
======================================================
Appearance :
For the Petitioner : Mr. S.M. Asharaf, Sr. Advocate
Mr. Abu Bakar, Advocate
For the State : Mr. Binod Kumar, APP
For the O.P. No. 4 : Mr. Ajay Kumar Sinha, Advocate
Mr. Vishwajeet Kumar, Advocate
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 16-02-2026
Heard learned counsel for the parties.
2. The instant revision petition has been filed
against the order dated 17.07.2025 passed by the learned
Additional Sessions Judge-VIII, Patna, in Criminal Appeal No.
164 of 2021 (CIS No. 164 of 2021), arising out of judgment and
order dated 05.03.2021 in Trial No. 806 of 2021 passed by the
learned Additional Chief Judicial Magistrate-XIII, Patna, in
connection with Kotwali P.S. Case No. 126 of 1999, whereby
and whereunder the learned Appellate Court rejected the
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application dated 18.06.2025 filed under Section 391 of the
Code of Criminal Procedure (for brevity, "Cr.P.C.").
3. Brief facts of the case are that the petitioner is
informant / victim of Kotwali P.S. Case No. 126 of 1999, which
has been registered with allegation against opposite party nos. 2
to 4, as the accused persons attacked the informant and her son
and the assailants also snatched gold chain of the informant
weighing two bhars. Chargesheet was submitted on 31.05.1999.
However, cognizance was taken under Section 504 of the Indian
Penal Code, though FIR was lodged under Sections 452, 324,
323, 504 and 379 of the Indian Penal Code. On 30.03.2001,
charges were framed under Section 504 of the Indian Penal
Code and summons to private witnesses were issued. Four
private witnesses turned hostile. It also appears that trial
remained pending from 25.08.2005 till 07.01.2015 stated to be
due to continuous non-appearance of one of the co-accused
person, namely Yusuf Yunus. The death report of the accused
was submitted on 07.01.2015 and thereafter, the matter was
again posted for prosecution evidence. The learned trial Court
closed the prosecution evidence on 19.03.2015 and on the same
day, the prosecution filed an application under Section 311 of
the Cr.P.C. for summoning and examining three key witnesses.
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The application was allowed on 30.04.2015 and the witnesses
named in the application were examined between 16.05.2015
and 10.09.2015. Learned trial Court thereafter issued order for
summoning of official witnesses on 28.09.2015, but the actual
summons were issued much later, on 05.01.2016. No service
report was received regarding summons. It appears that the
learned trial Court, thereafter, closed the prosecution evidence
on 06.04.2016. The petitioner highlighted the approach of the
learned trial Court by filing another application dated
27.04.2016
under Section 311 of the Cr.P.C., pointing out that
the summons to Medical Officer (for brevity, “MO”) failed
because they were sent to his old address at P.M.C.H., Patna
while he has been transferred to A.N.M.M.C.H., Gaya.
However, the learned trial Court rejected the application on
18.05.2016. Against the said order, the petitioner preferred a
Criminal Revision No. 348 of 2016, but the same was also
dismissed on 17.12.2016. On 20.02.2017, the petitioner filed
application under Section 2016 of the Cr.P.C., seeking alteration
of the charge to include the graver offences disclosed in the FIR.
The rejoinder was filed on 19.04.2017 and the learned trial
Court again rejected the application holding that there was no
material on record warranting alteration of charges. Aggrieved
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by this order, the petitioner preferred Criminal Revision No. 438
of 2017 before the learned Sessions Court, but the said revision
was subsequently dismissed as withdrawn on 19.07.2017. Again
the petitioner filed a petition under Section 259 of the Cr.P.C. on
11.10.2017, which was kept pending for disposal for more than
two years and was finally rejected on 24.06.2020. Lastly, on
05.03.2021, the learned Additional Chief Judicial Magistrate-
XIII, Patna, passed a judgment acquitting the accused persons.
The judgment of 05.03.2021 was assailed by the informant /
petitioner before the learned Sessions Court, Patna by filing
Criminal Appeal No. 164 of 2021. The petitioner filed an
application before the learned Appellate Court under Sections
391 of the Cr.P.C. on 18.06.2025. However, the Appellate Court
by its order dated 17.07.2025, rejected the said application. This
dismissal order is under challenge before this Court.
4. Learned senior counsel appearing on behalf of
the petitioner submits that the order of the learned Appellate
Court rejecting the application of the petitioner filed under
Section 391 of the Cr.P.C. read with Section 132 of B.N.S.S. is
illegal, perverse and contrary to settled legal principles. The
learned Appellate Court failed to appreciate that the non-
examination of Investigating Officer (for brevity, “IO”) and MO
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was due to the failure of the learned trial Court to ensure proper
service and is not attributable to the prosecution. The learned
Appellate Court, further failed to appreciate that non-
examination of IO and MO, was due to procedural drawback as
the learned trial Court failed to take any coercive steps under
Sections 62-67 or Section 70 of Cr.P.C. after summons remained
unserved. The petitioner, from time to time, filed appropriate
applications for examination of witnesses and also for alteration
of charge, though the said applications were not entertained by
the learned trail Court, except one. The learned trial Court failed
to act even after prosecution filed an application under Section
311 of the Cr.P.C., pointing out the correct address of the MO
and requesting for issuance of fresh summons. But again, this
application was arbitrarily rejected on 18.05.2016 despite
correct address provided by the petitioner.
5. Learned senior counsel further submits that the
petitioner has all along been showing due diligence in the matter
and has taken all steps to put forth his case before the learned
trial Court. Learned senior counsel further submits that Patna
High Court in the case of Md. Naseem Raja Rehmani v. State
of Bihar, reported in 2017 (2) PLJR 382, held that additional
evidence at appellate stage is permissible, in case of failure of
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justice. However, such power must be exercised sparingly and
only in exceptional suitable cases where the Court is satisfied
that directing additional evidence would serve the interest of
justice. Such an application for taking additional evidence must
be decided objectively, just to cure the irregularity. The primary
objective of Section 391 of the Cr.P.C. is the prevention of
guilty man’s escape from careless or ignorant action from part
of the prosecution. Learned Appellate Court further failed to
appreciate that adducing additional evidence of important
witnesses will further open the scope of its wide powers under
Section 386 of the Cr.P.C. read with Section 216, to alter or
modify charges. The Hon’ble Supreme Court in the case of
Chandra Pratap Singh v. State of M.P., reported in (2023) 10
SCC 181, has categorically held that in view of the wide powers
conferred under Section 386 of the Cr.P.C., even an Appellate
Court is empowered to invoke Section 216 for altering or
modifying the charge. Learned senior counsel further submits
that despite filing timely applications under Section 311 of the
Cr.P.C. and later on under Section 391 of the Cr.P.C., the
petitioner was denied justice due to mechanical and non-judicial
approach of the learned trial Court and the Appellate Court. The
Court did not consider for a moment that the delay in securing
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the IO and MO was caused entirely due to trial Court’s failure to
invoke appropriate provisions of Cr.P.C. to compel their
attendance.
6. Learned senior counsel further refers to the case
of Ajitsinh Chehuji Rathod v. State of Gujarat & Ors.,
Criminal Appeal No. 478 of 2024 (Arising out of SLP (Crl.) No.
16641 of 2023), reported in (2024) 4 SCC 453, and submits that
law is well settled that power to record additional evidence
under Section 391 of the Cr.P.C. should only be exercised when
the party making such request was prevented from presenting
evidence in the trial despite due diligence being exercised or
that the facts giving rise to such prayer came to light at a later
stage during pendency of the appeal and that non-recording of
such evidence may lead to failure of justice. Learned senior
counsel thus submits that at every possible occasion, appellant /
petitioner tried to bring the evidence on record before the
learned trial Court though she was unsuccessful in her
endeavour so, it could not be said that there was no due
diligence.
7. Learned senior counsel lastly submits that if the
evidence is not allowed at this (appellate) stage, the same might
result in failure of justice. Therefore, the present revision
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petition needs to be allowed.
8. Learned counsel appearing on behalf of opposite
party nos. 2 to 4 vehemently contends that there is no infirmity
in the impugned order and the same is appropriate and correct.
He submits that the petitioner got ample opportunity of
adducing evidence before the learned trial Court, but failed to
adduce the evidence. The learned trial Court, after giving ample
opportunity to the petitioner, closed the evidence. On
19.03.2015, the petitioner filed an application under Section 311
of the Cr.P.C., which was allowed. But, even then the petitioner
failed to adduce evidence and subsequently, due to inability of
the prosecution to produce the evidence, the evidence was again
closed on 27.04.2016. The petitioner again filed a petition under
Section 311 of the Cr.P.C., which was rejected. Against the
rejection of her petition, the petitioner approached the learned
Sessions Court by filing a revision petition, which was
dismissed vide order dated 17.12.2016 by the learned Sessions
Judge, Patna. Learned counsel further submits that the petitioner
had employed all tricks in her bag to delay the matter and linger
on the proceeding. The present revision petition challenging the
order passed by the learned Appellate Court under Section 391
of the Cr.P.C. is similar ploy by the petitioner. Learned counsel
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thus submits that there is no merit in the instant revision petition
ad the same be dismissed.
9. I have given my thoughtful consideration to the
rival submissions advanced by the parties and perused the
record. Section 391 of the Cr.P.C. reads as under:
“(1) In dealing with any appeal under this
Chapter, the Appellate Court, if it thinks additional
evidence to be necessary, shall record its reasons and
may either take such evidence itself, or direct it to be
taken by a Magistrate, or when the Appellate Court is
a High Court, by a Court of Session or a Magistrate.
(2) When the additional evidence is taken by
the Court of Session or the Magistrate, it or he shall
certify such evidence to the Appellate Court, and such
Court shall thereupon proceed to dispose of the
appeal.
(3) The accused or his pleader shall have the
right to be present when the additional evidence is
taken.
(4) The taking of evidence under this section
shall be subject to the provisions of Chapter XXIII, as
if it were an inquiry.”
Thus, this provision empowers the Appellate Court
to allow additional evidence at the appellate stage by itself or
direct it to be taken by a Magistrate and when the Appellate
Court is a High Court, by a Court of Session or a Magistrate,
provided the Appellate Court thinks additional evidence to be
necessary.
10. In the case of Zahira Habibullah Sheikh &
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Anr. v. State of Gujarat & Ors., reported in (2004) 4 SCC 158,
the Hon’ble Supreme Court dealt with the scope of Section 391
of the Cr.P.C. in extenso and held as follows:
“21. Section 391 of the Code is intended to
subserve the ends of justice by arriving at the truth
and there is no question of filling of any lacuna in the
case on hand. The provision though a discretionary
one is hedged with the condition about the
requirement to record reasons. All these aspects have
been lost sight of and the judgment, therefore, is
indefensible. It was submitted that this is a fit case
where the prayer for retrial as a sequel to acceptance
of additional evidence should be directed. Though,
retrial is not the only result flowing from acceptance
of additional evidence, in view of the peculiar
circumstances of the case, the proper course would be
to direct acceptance of additional evidence and in the
fitness of things also order for a retrial on the basis of
the additional evidence.
47. Section 391 of the Code is another salutary
provision which clothes the courts with the power to
effectively decide an appeal. Though Section 386
envisages the normal and ordinary manner and
method of disposal of an appeal, yet it does not and
cannot be said to exhaustively enumerate the modes
by which alone the court can deal with an appeal.
Section 391 is one such exception to the ordinary rule
and if the appellate court considers additional
evidence to be necessary, the provisions in Section
386 and Section 391 have to be harmoniously
considered to enable the appeal to be considered and
disposed of also in the light of the additional evidence
as well. For this purpose it is open to the appellate
court to call for further evidence before the appeal is
disposed of. The appellate court can direct the taking
up of further evidence in support of the prosecution; a
fortiori it is open to the court to direct that the
accused persons may also be given a chance of
adducing further evidence. Section 391 is in the
nature of an exception to the general rule and the
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care, especially on behalf of the prosecution lest the
admission of additional evidence for the prosecution
operates in a manner prejudicial to the defence of the
accused. The primary object of Section 391 is the
prevention of a guilty man’s escape through some
careless or ignorant proceedings before a court or
vindication of an innocent person wrongfully accused.
Where the court through some carelessness or
ignorance has omitted to record the circumstances
essential to elucidation of truth, the exercise of powers
under Section 391 is desirable.
49. There is no restriction in the wording of
Section 391 either as to the nature of the evidence or
that it is to be taken for the prosecution only or that
the provisions of the section are only to be invoked
when formal proof for the prosecution is necessary. If
the appellate court thinks that it is necessary in the
interest of justice to take additional evidence, it shall
do so. There is nothing in the provision limiting it to
cases where there has been merely some formal
defect. The matter is one of discretion of the appellate
court. As reiterated supra, the ends of justice are not
satisfied only when the accused in a criminal case is
acquitted. The community acting through the State
and the Public Prosecutor is also entitled to justice.
The cause of the community deserves equal treatment
at the hands of the court in the discharge of its
judicial functions.
50. In Rambhau v. State of Maharashtra
[(2001) 4 SCC 759 : 2001 SCC (Cri) 812] it was held
that the object of Section 391 is not to fill in lacuna,
but to subserve the ends of justice. The court has to
keep these salutary principles in view. Though wide
discretion is conferred on the court, the same has to
be exercised judicially and the legislature had put the
safety valve by requiring recording of reasons.”
11. The Hon’ble Supreme Court in the case of
Ajitsinh Chehuji Rathod (supra) in paragraph no. 8 held as
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under:
“8. At the outset, we may note that the law is
well-settled by a catena of judgments rendered by this
Court that power to record additional evidence under
Section 391CrPC should only be exercised when the
party making such request was prevented from
presenting the evidence in the trial despite due
diligence being exercised or that the facts giving rise
to such prayer came to light at a later stage during
pendency of the appeal and that non-recording of
such evidence may lead to failure of justice.”
Thus, the Hon’ble Supreme Court interpreted
Section 391 of the Cr.P.C. in the manner that this exercise of
allowing additional evidence at appellate stage is permissible
when the party making such request was prevented from
presenting the evidence in the trial despite due diligence being
exercised. Taking on additional evidence is also permissible if
the facts giving rise to such prayer came to light at a later stage
during the pendency of appeal with further condition that non-
recording of such evidence may lead to failure of justice.
12. Now, considering the aforementioned decisions
of the Hon’ble Supreme Court, vis-Ã -vis the statutory provision,
it is very much apparent that Section 391 is an exception to
general rule and for this reason, it should be exercised sparingly.
This provision appears to be pari materia with Order 41 Rule 27
of the Code of Civil Procedure, and due diligence is expected
from parties making the request for additional evidence. In the
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instant case, the learned senior counsel has addressed the point
that the petitioner has been diligent all along and has filed
application under Section 311 of the Cr.P.C. and even went to
the revisional Court against rejection of her application filed
under Section 311 of the Cr.P.C. But I am afraid this submission
is simply misconceived. The petitioner exercised her right and
made an attempt to get the additional evidence before the
learned trial Court. But her prayer was rejected and the rejection
became final. Filing of an application under Section 391 of the
Cr.P.C. by the petitioner is only trying to achieve something
indirectly which the petitioner failed to achieve before the
learned trial Court directly. It appears to be a colourable
exercise. For this reason, I find merit in the submissions made
by the learned counsel for the opposite party nos. 2 to 4 that the
filing of an application under Section 391 of the Cr.P.C. was
only a ploy to drag the proceedings. Considering the facts that
the prosecution started way back in the year 1999 after
institution of FIR in Kotwali P.S. Case No. 126 of 1999. No
doubt, additional evidence can be allowed at the appellate stage,
but it has to be in rare and exceptional cases only and not in a
case where the petitioner had already taken recourse of law in
appropriate proceeding and lost.
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13. The other condition for allowing additional
evidence is not present in this case, i.e. new facts coming to
light giving rise to such prayer at a later stage. The learned
Appellate Court has considered the conduct of the petitioner and
rightly came to the finding that the appellant / petitioner has
filed the application only to keep the litigation pending.
14. Hence, in the light of discussion made
hereinbefore, I neither find any rare or exceptional case in
favour of the petitioner to allow additional evidence nor find
any infirmity in the impugned order, so as to interfere with the
impugned order.
15. Therefore, I have no hesitation in holding that
the present petition is devoid of merit and hence, the same is
dismissed.
(Arun Kumar Jha, J)
Shahnawaz/-
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